

f53 
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HOLUNGER 
pH8.5 

MILL RUN F3-1543 




SPEECH 



. P H F: L P S, O V V E R M O N T, 

ON THE 

SUBJF.CT OF SLAVERY, &c. 



IN SRNATE, JANUARY 23, 1850. 

The Senate having resumed the consideration of the motion lo print the resolu- 
tions of the General Assembly of tlie State of Vermont on the subject of slavery, 
which were some time since presented by Mr. Upham — 

Mr. Phklps. After the few remarks which 1 made Ihe other day, 1 entertained 
the hope that I should not find myself under the necessity at present of participat- 
ing any further in the debate on this question. But, sir, after what has fallen from 
the other side of this chamber, I feel it due to myself, and due to the State I in part 
represent, to ofl'er some further remarks in vindication of my course and their course. 

Sir, I have been called upon to "face the music." I have no disposition, Mr. 
President, to avoid the "facing" of any "music;" but I must be allowed to say, 
sir, that 1 think we have some very bad "music" on this floor. I have been called 
upon, sir, to meet the issue. I make no issue here which I am not prepared to 
meet, and I trust my constituents will make no issue here which 1 am not prepared 
to meet. Nay, sir, I am prepared to meet the approaching issue, pregnant as it is 
with consequences to this country. 

Sir, it has been said by gentlemen on the other side of this chamber that this 
great issue was forced upon them. It has not, however, been forced upon them by 
the officiousness of any portion of this country; it is an issue which has forced itself 
upon us; an issue which has come here uninvited and unwelcome. It presents itself 
as one of that train of consequences which many of us foresaw and resisted. It 
comes here as the consequence — the necessary consequence — of a train of measures 
w^hich I, for one, have resisted from the outset. It is one of the fruits of that spirit 
of aggrandizement, and conquest, and military acquisition, which seems to have 
infected and infatuated every republican government. Sir, it is one of the fruits of 
our Mexican war — the fruits of that policy which originated in the disposition to 
extend the area of our power, but which carries in its train the element which may 
in the end dissolve this Republic. Sir, I am not surprised at this issue. It is what 
I have long anticipated; it is an issue which we cannot avoid; and here, sir, lie.'^^ its 
difficulty and its danger — it is a question to be settled; l)ut /tow settled no man on 
this floor can now anticipate. 

Sir, in approaching this question, I am not forgetful of the pledge w^hich 1 gave 
the Senate on a former occasion, that I should approach it coolly, deliberately, and 
with a feeling of conciliation; that I should approach it with an ardent attachment 
to the Constitution and to the Union. Sir, 1 shall not be diverted from this deter- 
mination, whatever may be the tenor or the temper of the debate. There are too 
many considerations of imperious an.l appalling import now pressing upon me to 
permit me to depart in the least from what I consider a cool and dis[)assionate, and 
rational consideration of this question. 

Sir, we are all attached to the Union; we all value the harmony and stability of 
that Union; and no topic which tends to endanger either, should, in my judgment, 
be discussed here in anger. 

Sir, these professions may be doubted. My professions the other day seem not 
to have carried with them the most implicit confidence on the part of some gentle- 
men. Sir, if proof were wanting of the sincerity of my professions on this subject, 
it is to be found in the history of my public life. There are passages, Mr. President, 
in that life here which Senators ought not to have forgotten. Il is but a few months 
since, in the position where I now stand, I advocated t!ie measure alluded to by the 

Gideon & Co., Printers. 









honorable Senator from South Carolina. I allude to the territorial bill reported by the 
select committee, commonly called the Clayton compromise. The honorable Senator 
from South Carolina, [Mr. Buti.kr,] the other day, pronounced that bill satisfactory 
to the South. His expression was, that it was "framed to save the honor of the South." 
I sustained that bill; and under what circumstances? Sir, I knew from the outset 
the position I was about to take, in consenting to be a member of that committee. 
I knew that it was no enviable, but a perilous position. I knew well the difficulty 
of reconciling the excited feelings of different sections of this country; I was not 
ignorant of the danger of any concessi jn, with a view to compromise. I knew, sir, 
the temper of the people of different sections of this Union, and that every conces- 
sion, on cither side, however small, would be viewed with extreme jealousy. Sir, 
I might have avoided this position; 1 might have gone further, and when the bill 
was reported I might have consulted mv own popularity by going with my friends 
of the North, and following the crowd in denouncing the creature of our own crea- 
tion. Sir, it was not unanticipated that, in consequence of my course upon that bill, 
my name should be associated with terms of reproach; that opprobrium, personality, 
and, sir, I may add, personal insult, should be cast upon me. But, sir, I trust I was 
influenced by higher and better motives than the mere love of popularity. I had a 
duty lo ]ierform here; I desired to see this troublesome and dangerous question set- 
tled; .ind, in the discharge of that duty, 1 came boldly to the vindication of that 
bill, while it was dcnouncpfl by the almost unanimous voice of the North; and, I 
may arid, by tlie almost unanimous voice of my own constituency. I stood alone of 
all the people of the North; 1 followed the dictates of my own judgment; and, I 
must be permitted to add, in all sincerity, that judgment is now what it was then. 

Sir, I regret that the bill did not pass, and 1 believe the country will yet regret it. 
I was willing, if necessary, to make myself a sacrifice in order to attain the great 
object of harmonizing this Union, and of putting an end forever to the question 
which now agitates and alarms us. If that object could have been attained by the 
sacrifice of my humble jiretensions, I would have considered the object very cheap- 
ly purchased. Sir, when gentlemen from other sections of this Union, when gen- 
tlemen fro;n the South, will place themselves in the gap between the excited feelings 
of their constituents and the harmony of this Union — when they, disregarding the 
excitement of the moment, will breast themselves to the storm of popular prejudice, 
hazarding their popularity and their good name with an excited constituency, I pro- 
mise those gentlemen 1 will nev(;r do them the injustice to doubt the sincerity of 
their professions. 

I will pursue this subject no further. My object is to satisfy the Senate, that in 
what I have said in relation to the cultivation of a harmonious spirit, whatever pro- 
fessions 1 have made of a disposition to harmonize the difl^erent sections of this 
Union, and settle forever this troublesome question, my sincerity is proved by the 
cour>e I have heretofore taken on this floor. 

Sir, one object I have in addressing the Senate on the present occasion, is to 
vindicate the resolutions presented here from the State which I in part represent. 
Those resolutions have been the object of no very conciliatory comment. Almost 
every epithet in the whole category of opjjrobrium has been bestowed on them. 
Sir, I believe I can vindicate those resolutions before the Senate, and before the world. 
They have been, sir, misconceived here, and most grossly misrepresented elsewhere. 
They h;ive been pronounced on this floor offensive, violent, opprobrious, vituperative, 
unjust, insulting, treasonable, and untrue. Sir, if there is anything left in the cate- 
gory of opprobrium not bestowed upon them, it may well be regarded as surplusage. 

Let me advert to the resolutions themselves. [ have said that they have been 
misconstrued. Sir, if they have not been most egregiousl}^ misconceived, I have 
not the ca|)acity to judge. They are drawn not, perhaps, as skilfully as they ought 
to be. The language; is perhai)> not precisely what others would have employed to 
express the same sentiments. I will read them. The first resolution asserts — 

"That slavpry is a crimnaijninst huinnnity and a sore evil in the body politic, that was excused by 
the fr.imers of ihn Feilfral Cimsiiiution ns n crime entailed upon tlie country by their predecessors, and 
tolerated as a thing of inexorable ncccBsily" 



The other day I took the liberty of remarking that the sentiment here expressed 
was the general sentiment of the civilized world. In making this remark 1 really 
regarded it as rather conunun-j)lacc. It seems, however, to have been received as 
offensive, and was so considered probal))}' because ilie resolutions themselves were 
considered to convey an oll'cnsive imputation. Sir, when 1 made the remark, I 
considered that these resolutions cast no imputation on any portion of this Union. 
I regarded the resolutions as merely expressing an abstract opinion, directly impH- 
cating nobody ; and, having this view of their purport, I felt at liberty to endorse 
them, although if 1 liad regarded the resolution as containing an olliinsive imputation 
on any portion of {pr Union I should probably have avoided the expression. But 
these resolutions merely express an abstract opinion. What is it ? That slavery is 
a crime, or, if you please, an offence against humanity. Whom does this implicate > 
Upon whom is censure cast ? Upon those, and those only, who j)articipate in the 
offence and are responsible for the crime, if there be a crime. If criminality is im- 
puted to any one in j)articular, it is by inference, and by inference only. What, 
sir, have you, and what have I heard from our childhood on this subject ? We have 
all heard and felt the force of the vindication of the South on this subject. What- 
ever may be the origin of this institution, its continuance has been vindicated by 
gentlemen of the South ; first, on the ground that they are not responsible for its 
origin ; and, secondly, on the ground that its existence being a matter of inexorable 
necessity, they are not responsible for that continuance. Sir, this language has 
been used everyv.'here. 1 have not only heard it, br,t I have used this language 
myself among my own constituents, in excuse, if you please, or in vindication (if 
you please to use the teim) of the people of the South for their participation in this 
institution. 

I repeat, we all felt the force of this argument. Let the institution be an offence 
against humanit)^, if you please; those who brought it into the country are responsi- 
ble; those who participate in it are responsible for its continuance, only when its 
abolition can be made consistent with their safety. I have ever felt the force of this 
argument. And what say the resolutions.? They express the o])inion that the in- 
stitution is an offence against humanity. They proceed further to present the 
vindication which the South have always urged for themselves, the fact that the 
institution was entailed Mpon them by those who had gone before them, and that its 
continuance M-ith them rests upon inexorable necessity. i\ow, sir, having this view 
of the resolutions, finding they presented, at the same moment in which they brand- 
ed the institution as a crime, the excuse in exculpation of the South, I could not re- 
gard the sentiment as an imputation upon them. It was with this view that I 
hazarded the remark which I then considered, and now consider, rather as a common 
place one, without the slightest idea it could give offence to any one. 

But, sir, does the assertion need proof? Does the opinion that the institution is 
inconsistent with the dictates of humanity need proof.? 

Sir, what has been the opinion, and what is now the oj)inion of the civilized world? 
What has been the language of the ablest and best men of the South.? What lan- 
guage have they held before the world, and what has the civilized world at large 
said and done on this subject? Sir, if we look abroad we find the opinion of the 
civilized nations of Europ;? expressed by their acts. Great Britain has put an end to 
the institution; France demolished it at a single blow. One of the first acts of the 
French Republic— I speak of the existing Republic — was the abolition of this insti- 
tution totally, universally, absolutely, without reservation and without qualification, 
throughout her dominions. Sir, how did we feel, and how did this Senate act, in re- 
gard to that matter? Have gentlemen forgotten the resolutions of congratulation, 
and sympathy, and approbation which were transmitted from this body to France 
immediately after her late revolution? And have gentlemen forgotten the remark 
which 1 thought proper to make on that occasion, when we were expressing our 
gratification that, among the first acts of the new government wi'.h whom we were 
sympathizing, and to whom we were extending our congratulations, w'as the absolute 
and unqualified execution of a measure about Avhich my humble constituents were 
not even permitted to talk? Yes, sir, tlie axe was put to the root of the institution. It 



was done boldly, promptly, decisively; and yet, at the moment when we were tlius 
expressing our sympathicj; and extendin;^ our coni,'ratulations, the subject when pre- 
sented here from a constituency represented on this (loor, was laid upon the table 
upon the question i>f rec«'|)tii)n. Now, sir, I tiiid no fault with that disjjosition of the 
subject, so long as it is l)ruught here by the ollicious fanaticism of people who had 
better let it alone. So long as it is the mere topjic of demagoguism and popular ex- 
citement, I care not, if it is presented here in that spi^, if it is put unJ*:';- your table. 
But the subject presents itself now in a (lifFerent aspecP^it- comes to us, as I have 
already remarked, uninvited and unwelcome. It is an intrud^u])i)n us; but, even 
though it is an intruder, it must be received, for we cannot gcNpd of it. The issue 
is made in respect to these territories in reference to this institution, and it cannot 
be evaded. It must be met and it must be decided. Under these circumstances it 
is the right of every Slate and of any State iti this Union to express its sentiments 
upon this engrossing subject. It is the right and duty, in this aspect of the question, 
for every State to express not only its opinion as to the propriety of extending this 
institution to our territories, but its opinion of the institution itself. 

But if 1 was not right in the remark I dropped the other day with reference to 
the views and opinions of the civilized world — with the exception, perhaps, of a small 
portion of it in which th • institution exists— if I am in error, let gentlemen point me 
to some spot in th*' civilized world where the institution does not now exist, and 
where a civilized people demand its introduction. Sir, who desires it.' When and 
where, in what portion of the globe, do you find an earnest wish expressed for its in- 
troduction where it has not heretofore existed? What is now the sentiment of the 
people of all these territories? What was the sentiment of Oregon, and what is the 
sentiment of California' She has presented us here a constitution, in wiiich the 
people have attempted to prohibit the institution. But, sir, I need not go abroad for ma- 
terial to vindicate my expression ; I may appeal to the expressed opinions of the ablest 
and the be.>t men ofthe South — the able>t and the hest men whom this country has ever 
produced. What were the opinions of Washington, of Madison, and of Jefferson? 

Sir, gentlemen seem to have forgotten the expressive language of these men, 
when they regard the expression of similar sentiments in these resolutions as offen- 
sive to the South. Sir, let me advert to some of the opinions of Thomas Jetierson 
on this subject, and let me, at the same time, advert to the course of Virginia herself 
in relation to the introduction of this institution. Mr. Jetlirson tells us: 

*' Ourinij the n-^al (iovernment, we hail at one time obtained a law which imposed 
such a duty on the importation of slaves as amounted nearly to a prohibition, when 
one inconsiderate assembly, placed under a [)eculiarity of circumstarxes, repealed 
the law. This re|)eal met a joyfid sanction from the then Sovereign, and no devices, 
no expedient.-, which could ever after be attempted hv subsequent assemblie.s — and 
they seldom met without attempting them — could succeed in getting the royal assent 
to a renewal of the duty. In the very first session held under the Republican Gov- 
ernment, th<* assembly passed a law tor the per[)etual prohibition of the importa- 
tion of slaves. This will in some measure stop the increase of this great poliiical 
and moral tnyil, while the minds of our citizens may be ripeiu'd tor a complete eman- 
cij)ation of human nature." — JSt'otes on Virginia, pp. Itil, 1(5*2. 

Sir, the sentiments here expressed are the sentiments ol this day ofthe free States, 
and if an apology \n n 'cessary on their p;irt for their expression here, it is to be 
found in th(! fact that the languag(! is that of a distinguished statesman and patriot of 
the South. Mr. JefferHon says further: 

"And can the liberties of a nation be thought secure when we have removed tiieir 
only firm basis, a conviction in the minds of the people that these liberties are the 
eift of (j(Ki? That they are not to be violated but witli his wrath? Indeed I trem- 
ble for my country when I r<'tlect that (iod is jusl: that his justice cannot sleep for- 
ever." — Same, p. 300. 

Why tremble? If slavery be no sin and no crime, why tremble at the reflection 
''that (Irnl is ju-,t." Sir, this language, wh(Mi it was uttered, was the language of 
the patriot and the statesman. It was the language of a man more prominent as a 
Soutfiern statesnuui than any other man who ever existed in that quarter of the 



Union. ]5ut this iano;ua<^e, tlicn considered as the langua<^e of the philosopher, the 
patriot, and the statesman, has now fjecome ^'■fnnnticism.''^ Transjjlanted from the 
soil of Virginia to the free soil of the North, these sentiments, which at one time did 
honor to the head and heart of the author, have now degv-nerated into '■'■fanaticism.'''' 
This prohably is an illustration of what the Senator from JVIicliigan, (Mr. Cass,) 
calls the progress of the age — of progress in morality and in political ethics. The .state- 
ments thus uttered in the very heart of the country where this institution exists; 
uttered by Mr. Jetf^son with the approbation ol his own country, his own people, 
and of the world; "when repeated by my humble constituency, in lesH pointed and 
less vigorous terms, become ^[fanoticis-m.'' 

What have we done here? What sort of brand has Congress put upon this insti- 
tution.' Sir, at the very outset of our legislation, the subject of the slave-trade was 
taken up. As early as 1794, although the importation into this country could not 
then be prohibited under the Constitution, laws were passed against carrying on the 
foreign slave-trade, with the severest penalties attached to their violation. As early 
as May, 1800, anotlier act was passed involving the forfeiture of all vessels built and 
equipped for the purpose, and all jjcrsons employed in the business, on board those 
ships, were made liable to a peaalty of $2,000 and imprisonment for two years. In 
March, 1S07, an act was pas-cd pruliibiting the introduction ()f slaves into the coun- 
try after the first of January, 1808. The law also provided, ihal all vessels built 
and equipped for that purpose should be forfeited, and the penalty on the persons en- 
gaged in fitting out such vessels was fixed at a fine of $20,000. The penalty for 
the importation of the slaves iato the country, was imprisonment for not more thaa 
ten nor less than five years, and a fine of not more than $10,000 nor less than $1,000. 
The act of 1818, was a similar one. fn May, 1820, the frajftc was pronounced piracy, 
and piinished with death. Sir, is this traffic, which you denominate piracy and pun- 
ish with death, to be denominated a crime or not? This resolution assumes that it 
is a crime. If it is no crime, why jironounce it piracy, and punish it with death? 
Sir, I am aware that these penalties are directed against the si ive-trade, and that it 
is the importation of slaves which has been made the object of these stringent and 
severe prohibitions; but is not the institution it.-elf a pcrpt^tuation of the offence 
against humanity? It originated at the outset in what you deem piracy, and, how- 
ever long it may continue, it partatces still of the cliaracler of its origin. It is of the 
blood of its own lineage. 

Sir, the present generation may not be responsible for its origin — it may be an 
evil which they cannot remedy. But, sir, do these consideration:; re. ider tiie institu- 
tion less oppressive, or more consistent with the dictat' -■ of li.-'vi: nity? 

This is not all, Mr. President. In our treaty with G.^^ai Britain, ratified in 1842, 
■we stipulated to employ a force on the coast of Africa for the suppression of this 
slave trade; and, further, the parties to that treaty eiignged to exert their influence 
with nations still permitting the trallic, to put an end to it by closing their markets. 
It v/as thought to be the best mode of discouraging this disgu. ting tralfic to close the 
markets. What do my constituency now propose? They piopo.-e ntttoopen new mar- 
kets in territories where the institution does not now e\i -I, for the future encourage- 
ment of a traffic which the almost entire civilized world has coinbined to suppress. 

Sir, are not the cases parallel? If we are justified in juitting an end to this traffic; 
if we are justified in endeavoring to close the market in other countries, how can 
we be justified in opening these immense territorie.-, th.it have been conquered by 
our valor, as a new market for the introduction of this species of property — a new 
stimulus to this abominable traffic? 

Mr. President, the second resolution has, if possible, boon more misconceived 
than the first. It has been asserted here, and it has been asserted eNewhere, that 
the second resolution claims a right in Congress to interfere with the institutions of 
the various States Sir, the resolution claims no such right. It will bear no such 
construction. It is only by a substitution of one expression for another, that such a 
construction can be fixed upon it. What is the language of the resolution? 



6 

"That the so-called ^coinjiroinise of the Constitution' restrained the Federal Gov- 
enunent troni interrerence with slavery only in thf States in which it then existed, 
and trorn itit»*rfi!rence with the slave trade only for a limited time, which has long 
since expired." 

Now, it is to be remarked that the word restrained is used in the past tense; it is 
used in reference to the effect and operati(tn of the Constitution at the time it was 
adopted. Well, sir, is not the assertion true? If the compromises of the Constitu- 
tion, which restricted Congress in relation to this subject, restycted them in rela- 
tion to other territories than the States where it then existed, I desire to be informed 
•where tho>e territories are; lor at this time we had "but one territory, that of the 
northwest. The question as to that was settled by the old Congress, existing under 
the confederation, by a compact which has been Regarded from that day to the pre- 
sent as binding upon all. We had no other territory. VVhere, then, could this 
restriction take etiect, unless it were in the States where the institution existed? 

It has been said that this resolution asserts the power in Congress to interfere 
with slavery in the new State.s — in the States which have been admitted since the 
adoption of "the Constitution. Sir, I repeat, it asserts no such power. What are 
those States? First, Kentucky and Teimessee. Sir, we all know that those States 
were a portion, one of Virginia, and the other of North Carolina. If the restriction 
operated in Virjinia as she stood at the time of the adoption of the Constitution, and 
upon North Carolina, it covered those territories. So I'ar, then, as new States have 
been formed out of the limits of the old States, the restriction which applied to the 
old States will apply to the new, thus formed out of the limits of the old. Then 
came Alabama and Mississippi, formed mainly within the limits of Georgia. They 
stand upon the same footing. 

But there is another aspect in which this matter is to be viewed. Those who 
draughted the resolution knew well that, although the proposition in its terms is 
unquestionably true, that the Constitution only restricted Congress as respects those 
States where the institution existed, yet the subject was open to be acted upon by 
Congress in relation to the territories. Our first territory was Louisiana; our 
second Florida. Now, I maintain that, while these territories remained territories, 
it was competent for Congress to regulate the subject of slavery within them. 
However that may be, when those teriitories became States, the power of regulat- 
ing the subject passed from Congress. They had no longer any control over it. 
And thus the new States, introduced since the adoption of the Constitution, have 
been placed, by virtue of their sovereignty as States, and their exclusive control 
over the subject, without the pale of our legislation. 

Further: the resolutions proceed to state — 

''That the powers conferred upon Congress by the Constitution to suppress the 
slave tradi', to regulate commerce between the Slates, to govern the territories, and 
to admit new States — powers conferred with an express intention "to foi-m a more 
perfect union, establish justice, ensure domestic tranquillity, provide for the common 
defence, promote the general welfare, and secure the blessings of liberty to our- 
selves and our posterity" — may all rightfully be used so as to prevent the extension 
of slavery into territory now free, and to abolish slaver}'^ and the slave trade 
wherever either exists urxler the jurisdiction of Congress." 

Now, sir, is not this plain? Can any thing be more so? It asserts the power 
only in territories subject to the jurisdiction of Congress. I regret, sir, that there 
has been this mistake. I regret that this error has gone abroad. I have seen 
some notices of this resolution in the newspapers in which the .same mistake occurs. 
The honorable Senator from Arkansas has been represented as saying that the reso- 
lution contains this ]>osition, that Congress is restricted only, cS'c." 

Now, sir, by substituting the present tense for the past, the resolutions are made 
to receive a construction which those who drew them up, and those who adopted 
them, never imagined would be a])plied to them. Upon this error, Mr. President — 
ufXiU ihh misapprehension — have been hung speeches filled with opprobrious epi- 



thets, in this Hall, and various comments elsewhere, which I can only characterize 
as the result, on the part of tho.se who uttered them, of their own hasty misappre- 
hension. If gentlemen had ascertained with more accuracy the purport of the reso- 
lutions, they might, and I think probably would, have spared us the comments in 
which they have indulged. The hcjiiorable Senator from Arkansas, after exhibiting 
to us the resolution as containing the assertion of a power which the resolution does 
not claim, and, contrasting it with the professions of gentlemen of the North, ex- 
claimed, "Commend me to such conciliation!" — conciliation in professions, accom- 
panied by an assertion on the part of the free States, of a power to interfere with 
this institution in the slave States of the laiion. Sir, if I were to commend the 
honorable Senator to any thing, I would commend him to the use of his spectacles 
when he reads the resolution again; and I think he will find that the offensive con- 
struction which he puts upon the resolution may very properly be termed a hasty 
misapprehension g£ his own. Sir, I disclaim it, as I have done heretofore; I dis- 
claim this imputation upon the resolution. I go further. There is not a man among 
my constituency, of ordinary intelligence, who does not understand and feel that 
this institution in the States is beyond the reach of the action of this body; it is uni- 
versally so considered — universally. 

Now, sir, the Senator from Arkansas says he wont argue with us. No, he will 
not; and for the very best of all reasons — we will not argue with him. We concede 
the point. We assert no such claim. We have no argument to support a claim 
which we do not think proper to make. 

Sir, what else is there in these resolutions? Why, sir, the residue of these reso- 
lutions merely assert the power of Congress to prohibit slavery in these territories; 
and this, sir, I take it, is not to be regardcnl as an offensive pretension, it may be 
ill-founded; but, sir, it is merely the assertion of a power that has been exefcised 
ever since the organization of this Government — a power, exercised in every in- 
stance where the exigency of the case called for its exercise. Is it offensive, Mr. 
President, to assert a power which has thus t)een exercised by this Government 
from the beginning.' Sir, we maybe wrong in this position; the p^ogre^s of the 
times, the superior light of the present day, and I might say, peihaps, the superior 
logic of the present day, may have dispelled the illusion that Congress has the right 
to legislate for the territories, and we may now be enabled, b}' abandoning the prac- 
tice of the Government, abandoning the construction of the Constitution adopted by 
all the departments of the Government, to place ourselves on a more comfortable 
footing by setting these territories adrift; for, sir, if the arguments we have recently 
heard upon this subject of the power of Congress to legislate for these territories be 
correct — if the logic is sound and the conclusions right — there is but one word in 
the English language which will describe the position of these territories, and that 
is the word "«Jrz/if." 

Mr. President, I have done with these resolutions; but there are other matters 
which demand of me a passing notice. I have heard much, sir, upon this floor, of 
the encroachments of the North. Sir, I desire to know what those encroachments 
are. Are they such as would justify any portion of this Union in dissolving its 
connexion with it, and setting at defiance the Government of this Union? What 
are those encroachments? When did they commence? How have they been fol- 
lowed up? Sir, the first time that this question ever arose, the first time it was 
ever proposed to regulate this subject by act of Congress, was with reference to the 
northwest territory, previous to the passage of the ordinance of 1787. Sir, in the 
enumeration of these encroachments of the North, w^e have been reminded of the 
exclusion ,of slavery from the northwestern territory, and the peopling of that terri- 
tory with a population who would '■'sting to death their benefactors.''^ 

Now, sir, be it an encroachment or be it not, who was the first man to propose 
the exclusion of slavery from that territory? The same individual, Mr, President, 
whose sentiments on this subject 1 have had occasion to refer to. Thomas Jeffer- 
son was the man who first proposed this measure in 1784. In 1787 the ordinance 



^\a«. a.l.'ptt'd; anil it was adopted by the unanimous vote of the States, including 
the Stales of the South. Now, sir, if this be an encroachment, who is responsible? 
If it be all eucroaohinent upon the rights of the South, who is the offender? Why, 
sir, -Mr. Jell'erson, the original projector, and the representatives of the South in 
thai Congress who sanctioned it by their unanimous vote. Sir, are we of the North 
to be reproached because slavery is excluded from that territory, when it turns 
out that the oriijinal projector of' the measure, and those who adopted it, were the 
representatives of a slaveholding constituency? 

Louisiana came into the Union, and what was done with Louisiana? 

Sir, this has been done: We have in that territory three slaveholding States — 
Louisi'cMia. Arkansas, and iMissouri — and but one free State, the State of Iowa. Sir, 
let me advert to another fact. At the time of the Missouri Compromise there was 
probablv not a slave to lie lound north of 36' 30'. Well, sir, the result was, that 
wherever t'le institution w'as found, it was permitted by that compromise to exist. 
So far a> this species of pr.^perty had found its way into the territories, so far it was 
recogxiiaed and protected by this compromise; but, sir, by that same compromise 
it was excluded north of 36'' 30'. Sir, was this an encroachment? Why, sir, it 
was a compromise in its terms, and a compromise in fact; and will gentlemen assert 
that a compromise, assented to on all sides, is to be called an encroachment upon the 
rii'hts of either party? If a compromise of this description is to be converted into 
an "encroachment,'' I confess 1 know not what meaning to attach to the expres- 
sion. The next step, sir, was the introduction of Florida, where slavery was per- 
mitted to exist. Was that an encroachment? Texas followed. It was permitted 
there, too. Oregon followed, and there it was excluded, with the concurrence of 
soutlicrn members, with the approbation of a southern President; and it was ex- 
cluded iVom a conviction that, law or no law, the institution never could find its 
way intu that territory. Sir, I think no man will entertain the =^lightest suspicion 
that slavery was either desirable in Oregon, or that, if it was permitted to find its 
own way, it would ever find a foothold there. Was this an encroachment ? 
Was this trampling on the rights of the South?" Sir, I don't understand the meaning 
of such ten. s. 

Then came New Mexico and California, What is the encroachment with respect 
to them? They have seen fit to abolish the institution, and they come to us with a 
prohibition in their fundamental aw. Now, sir, if we of the N'ort!' let these people 
alone, and leave them where their oun legislation has sc;.:i fst : .^ place them, we 
can hardly be taxed with encroaching on the lights of the South. 

Sir, if the icverse prove true; if the power of this country, once exerted to con- 
quer these territories, is to be exerted again for the purpose of planting amongst 
them an institution which they repudiate, that would be, in my opinion, a case 
calling most emphatically for the application of the term encroachment. Sir, a more 
egregious encroachment on the rights and liberties of any people cannot well be 
irnagined than to attempt to impose upon them an institution offensive to them — an 
instftutiou which they have in their lundamental law rejected. 

Sir, this is a species of encroachment that I protest against. I have listened to 
many homilies about the innate rights, and the inalienable rights of men, but I have 
iuht learned, for the first timo, if I understand aright some of the logic we have 
listened to, that these territories are independent of us; we own the land, but we 
have no right to control the people. If it be so, I think we are relieved from all 
re.sjwnsibillty on this subject, if we choose to leave them what they have made 
thcm.selves, a free people, and do not impose upon them institutions which they have 
n-jcflfd — I might perhaps say, have rejected with horror. 

Well, sir, there is another" complaint which I deem it my duty to notice. It is 
jjaid that we have refused to aid in the recapture of fugitives. Sir, is this a viola- 
tion of the Coustitution? I believe it has been settled by the Supreme Court that 
the free States are under no obligation at all to aid by their State legislation in car- 
rying <jul this provision of the Constitution. If, then, the Constitution does not 



9 

require them to do it, liow can they be guilty of a vioh\tion of the ('onstitution, if 
they refuse to volunteer their aid? It becomes, therefore, a matter of courtesy be- 
tween the States. If the Constitution requires it, and they do not comply with its 
requisitions, they are guilty of a violation of that instrument. If it does not require 
it, how can they be in fault for not discharging a duty which is not imposed upon 
them? I am aware, Mr. President, that the complaint goes further. It is said not 
only that the free States have refused their aid, hut that they have enacted laws 
with a view of defeating this provision of the Constitution. Sir, if any laws exist 
in the legislation of the free States which are designed or calculated to defeat this 
provision, those laws are clearly unconstitutional. That is a proposition which may 
be termed a truism. It is not my purpose to defend any such legislation. I leave 
the authors of such laws, if such laws exist, to their own vindication. I can assent 
to nothing intended to violate this instrument, so long as we profess to adhere to it, 
and be governed by it. 

Another cause of great complaint is the existence of these "incendiary publica- 
tions," as they are called. Mr. President, it is the misfortune of our country that 
we have all a little taste for the ^'■profrress of ihe «e-e;" we are all a litiic ambitious 
to go ahead, and the country is alilicted with ten thousand visionary theories, based 
upon the assumption that God in his providence created all things wrong, and that 
it belongs to the "progress of the age" in which v)e. live to make all things right. 
Thus, sir, the institution of slavery is assailed — the Constitution itself is assailed. 
Why, sir, I have had two or three copies of a paper sent me recently in which 
there is a form of a petition to Congress to abrogate the Constitution. The church, 
too, is assailed. There is a sect in m)^ own neighborhood who are determined to 
pull down the pillars of the church. They have got sick of all religion, and, for 
aught I know, they will be prepared in the end to disown their God. We have a 
sect, too, who think all the institutions of society wrong — the domestic institutionH 
all wrong. Man was made, in their opinion, to live as the animals do, and the 
very best disposition of us all would be to turn us into a sheepfold, as we gather our 
sheep at the North. Sir, I have as little patience with this philo-ophy, if yni can 
call it philosophy, as any man in the Union; as little taste for the teachings of these 
philosophers, who, starting on the principle that their Maker did not understand 
his business, are working to create all things anew. 

Why, sir, these persons are not satisfied with correcting the institutions of the 
South, they are determined to correct the institutions of the North also. Things 
at the North are offensive; the very organization of society is offensive; the church 
of God is offensive; and if these gentlemen could succeed ^nd hive their way, we 
should have, in the fulness of time, the perfection of t..e "progress of the age." 
But what is to be done with these persons? What can you do with them? Sir, it 
will not do to pass sedition laws. That experiment has been once tried. It is not 
likel}- to be repeated soon. What, then, can you do with them? Why, sir, let 
them philosophize; let them shed the Hght of their peculiar philosophy the world 
over; and let the w^orld, in its good sense, judge of it, and dispose of it. We can- 
not ^top it, Mr. President; it would be idle for us to attempt to suppress all the 
nonsense we have at hoine, and it would be equally idle to attempt to suppress a 
great deal of the nonsense that we find abroad. Legislate to cure their wretched 
theories! — legislate to give men brains enough to understand the folly of it! Why, 
sir, it is not in the power of human legislation to cure this folly. Nothing short of 
a creative power can relieve them from the extraordinary mental obliquity by 
which they are afflicted. 

Sir, I am not disposed to justify this kind of folly, but what I would say is, that 
the gentlemen from the South should not condemn us all. They should not anathe- 
matize the whole North because we Iiappen to have some inquisitive geniuses, who, 
for want of bette; employment, are disposed to scrutinize the institutions of the South. 
It is beyond the reach of legislation; it is be3'ond the reach of political power. 
It is to be met by reason and good sense; to be combatted in its own element. 

With respect to the sentiment, however, that deep, abiding, permanent senti- 



10 

ment of the Nt>rth, that .slavery ought not to be extended to these territories, that 
18 a very diflerent thing; it is a more enduring principle. Sir, on that subject our 
opinion:^ have been exprej.sed — firmly, calmly, and boldly expressed, without 
equivocation; and all that we propose is to carry out our own opinions, as far as we 
have the power, by regular, ordinary, constitutional action. If it turns out that we 
have no constitutional power over the matter, we must yield; but, if we have a 
constitutional power over it, then, sir, we propose to use it. All we ask is, that the 
lesjislation of Congress upon tlie matter, within its constitutional jurisdiction, shall 
be guided by the <ound judgment of Congress. And, sir, let me protest here, let 
me" protest "again, against the idea, or the suggestion, that this subject is pressed 
upon us by the North. Sir, we all see and feel that it is one of the fruits of this 
war ol conquest; that it presents itself here in a commanding attitude; the question 
is not to be evaded. Sir, I regret as much as any man to see the countenance of 
this unwelcome guest here. 1 would have closed the door against him; I would 
have clos- d it by rejecting every thing like acquisition of territory, to be made the 
subject of dissentions such as are going on now; to be made the tirena upon which 
this issue is to be tried — this disgusting controversy about slavery carried on. But, 
sir, it Is ;■ ssible that we may be relieved, after all. If it can be made out, that we 
have no control over these territories; that we are mere proprietors of the land 
there, and have no control, no legislative power with respect to them; then, sir, I 
do not see but we can bow this unwelcome visiter out of the chamber. 

But, sir, I am disposed to hesitate before I reject the construction of the Constitu- 
tion adopted by abler, better, and wiser men than I am. Sir, if we possess no 
power to legislate over these territories, they must be very much in the situation 
in which the honorable Senator from Georgia (Mr. Berrien,) considers his consti- 
tuents placed by my remark the other day about the civilized world; if we have no 
control over these territories, they are out of the civilized world, and like the ill- 
bred Yankee boy, instead of being in a condition of pupilage, as Senators have 
expressed it, they must come up afoot. 

Sir, let me very concisely express my own view in relntion to this matter. By 
treaty with France^ Louisiana was ceded to this country; by treaty with Spain, 
Florida was ceded; by treaty with Mexico, New Mexico and California have been 
ceded. Now, sir, what is it that was ceded? Is it the mere land.-" Why, sir, I 
have yet to learn that they have any public domain ; there may be, or there may 
not. What, then, was ceded to us.' The sovereignty of the country. That is the 
great object of all cession. If the United States had merely purchased a title to 
land within the jurisdiction of a State, an act of cession would be necessary to give 
juri^diclion; but if the territory be conquered, and in consequence of such conquest 
ceded by Mexico, the sovereignty is ceded, and the public domain follows, not as 
the principal object of cession, but as a mere incident to the transfer of sovereignty. 
Now, sir, can we take the cession? Have we the constitutional power to accept it? 
Thi.-> question was once agitated. It was once proposed to amend the Constitution 
of the I iiited States, in order to remove doubts as to the constitutionality of the 
purchase of Louisiana; but the good sense of the American people seemed to ap- 
prove the measure, and the project of amending the Constitution was abandoned. 
Sir, we will suppose that we have got over that dilliculty — (gentlemen may get over 
it a.s they jilease) — we will assunie that it is competent for this Government to take a 
cession of New Mexico and California, which cession conveys the sovereignty of 
the country. Now, if we I ecome the depositories of the power, can we or can we 
not exercihe it? If the sovereign control over the country, the highest attribute of 
M*vereignty that can be exerci.sed by any Government, belong to this Government, 
can lh»; (Government or can it not exercise the power with which it is thus clothed? 
Sir, I derive the power, not directly but indirectly, from the treaty-making power. 
If tlu- tuaty-iiiaking p(jwer enables us to take a cession of territory which involves 
the infill to ((jiitrol .•such territory, it would be an absurdity in the science of Gov- 
ernnKiit to .sup])o.^c that we may become the depositories of a power which we 
cimnol excrci-se. 



11 

Now, this may perhaps be deemed '■'■.subtle reasoning.'- It may be deemed 
'■^metaphijsical.'''' Sir, it would re(|uiro a good deal of metaphysics, I think, to get 
over the utter absurdity in which genth;men involve tiiemselves when they admit 
that we can acquire the sovereignty oC a country, and yet cannot exercise the 
rights belonging to that sovereignty. , 

Sir, in discussing this subject gentlemen overlook the distinction between a mere 
right of property and the sovereign power of a State. Sir, the cession of a territory 
or a tract of country, where the ceding power parts with its entire control to a sove- 
reign State, involves political power — the ownership of all belongs to the State. 
What is that ownership? Not a mere title under the existing law of another Gov- 
ernment. It is the highest title known to the law, the eminent domain residing in 
the sovereignty of the State; and where the ownership is of that character, political 
regulations and control follow it. The only mode in which that ownership can be 
exercised is through political action — by legislation. 

Sir, we may purchase a tract of land for an arsenal or a fort, and we then get a 
mere tenancy, in the language of the law; a tenancy in fee simple, under the law 
and jurisdiction of another State; the mere proprietorship of the land, the mere 
tenancy, involving no political power; but when our title involves the eminent 
domain, the very source of all tenancy and all title, then we have the sovereign 
power to be exercised by political action — by legislation. The ownership in a sove- 
reign State, where there is no other existing jurisdiction, involves political power. 

Sir, what is this distinction taken between regulating the land and governing the peo- 
ple? The question is asked, whether a mere cession of land gives political control over a 
political community within the territory? Certainly a mere purchase of land would not. 
But suppose that people have no sort of organization, no pohtical existence, how 
then are they a political community? They are subject to no control but of this 
Union, and if we cannot govern the people, what becomes of them? Sir, this must 
result, that if New Mexico and California are ceded to us by the Mexican Govern- 
ment, their sovereignty is passed to us. If we have got no political control in con- 
sequence of such cession, the people must be, as I said before, adrift; there is no 
other phrase that will express their condition. Mexico can have no control over 
them — they have no political organization. If we have no legislative power over 
them, they are without law, without government, possessing no political sovereignty 
of their own, and subject to no jurisdiction. The result, then, of a cession from 
Mexico, to the United States, is to make those territories independent of both 
Powers, and place them beyond the reach of legislation and of legal protection. 
They must, from the necessity of the case, adopt an organization and legislate for 
themselves; and when they do this, not under our authority, but by force of an 
inherent right of self-government, they become ipso facto independent; and the 
public domain residing in the sovereignty of the State, as the source of all title, at- 
taches to this new independent sovereignty, and thus our title to the land is extinct. 

Sir, by the terms of the Constitution we are authorized to make rules and regula- 
tions for the government of the territories. But it is said we can regulate our lands, 
but we cannot regulate the people. Sir, what kind of regulation would that be ? 
What sort of regulation is that which regulates an inanimate object only, but is bind- 
ing upon nothing animate — binding the land, but not the people who inhabit it? A 
law which nothing living is bound to regard ! 

If you make regulations with respect to your land, you must regulate the mode of 
acquiring title and the mode of transferring title. You must have some law in rela- 
tion to these matters, for you can have no title as mere owner of the land without 
some law to support it. Your law must regulate the people living upon the land. 
If disputes arise between you and some of your tenants, you must have some 
law to regulate those disputes, and you must have some tribunal to decide them ; 
you must also have some executive power to carry those decisions into effect. I 
know not how you are to administer law in a region where there is no law and no 
tribunals for adjudication, and no executive olficers to enforce decrees. Without 



1'2 

the^t' a>j:riu if^ ;uiv reo^ulations that you may make are nugatory and useless, and 
your arqui>ilion of territory is valueless You cannot control your land unless you 
have legislation, nor unless you have executive and judicial authority .somewhere. 
Well, sir, when you have tliese three branches, you then have the outline at least 
of a political government. It is impossible to proceed one step to any practical pur- 
pose, in my judgment, in regulating the territories, unless you have not only the 
form but the osse^ntials of government. When you have established regulations for 
the acquisition and transfer of titles, you have entered upon legislation. When you 
have created an executive and a judiciary, you have assumed political power. 
Where, then, is the limitation which ties you down to any particular subject or 
parti« ular course of legislation ? Is there any limit to your power, but the limit of 
legitimate legislation and sound legi.slative discretion.' Sir, is it not clear that the 
po\v^r to make rules and regulations respecting the territory of the United States 
carr'cs with it legi.-lative — political power.' And is it not further apparent that with- 
out that accompaniment the power conferred by the Constitution is impotent.? 

Sir. I am not disposed to occupy tlie time of the Senate upon this point. I have 
had occasion heretofore to express my views more formally, more at large, in regard 
to it, and I am not now about to repeat them; but I wish to ask some questions, rather 
for the purpose of information. It is said that we can regulate the land — the territory 
(for ''territory means land") — but that we cannot regulate the people upon it. Now, 
the verv first step is to have the land surveyed and offered for sale. It is sold. 
The (Juvernment issues its patent. The patentee goes on and takes possession of 
the land, and the moment he takes possession, he becomes independent of your 
Government! He is a sovereign by himself! He is, by himself, a '■'■political 
community!'''' [A laugh.] He sets yovi at defiance, and takes as much land as he 
pleases. Well, what are you to do.' Are you to drive him out at the point of the 
bayonet.' But suppose you grant another patent of the adjoining land to somebody- 
else who has got no bayonet, and a controversy arises between those tw^o men, what 
is to be done.' Why, I suppose they must fight it out; because, although you have 
the sovereignty of the country and you own the territory, you have no con.>titutional 
power to interfere in the coutroversv, and you must therefore make your obeisance 
to ther-e two individuals, holding under your own patent, in the character of media- 
tor between these two hostile '■'communities.''^ Sir, I will not follow the subject any 
further. I suppose, Mr. President, the provisions contained in our Constitution 
were intended to be practically sufficient to answer some purpose. I suppose they 
were intended to answer the great purpose of government ; but if our powers with 
respect to these territories are such as gentlemen suppose, and such modes of con- 
.struction are to be adopted, all I have to say is, the whole Constitution put together 
is not worth the controversy vvhieh has grown out of it. 

I had designed, sir, to allude to another subject, and I feel bound in some measure 
to do so. Sir, it is by vo means extraordinary that the discussion of this subject of 
slavery should produce excitement. It is by no means strange if that excitement 
should be carried to an extreme, and it is from this consideration — that men, under 
the influence of an excitement produced by a state of affairs like this, will some- 
times do what in their cooler moments they would have avoided — that my fears 
arise. This lies at the bottom of my apprehension in relation to this matter. 

Sir, we have heard much of the purposes and the determination of the people of 
the South. To what jK)int that determination tends, what that determination pre- 
cisely i.s, how far it reaches in its design and purpose, is not for me to say. I 
hope and tru-t that it reaches no further than is consistent with the rational and 
ron^ititutional i)rotection of their own rights, or .such rights, at most, as they sup- 
pose tlicmsclves to po>scss. if this determination, Mr. President, goes no further 
than to sustain their integrity as States, to maintain their exclusive jurisdiction over 
their own domestic aflairs, nobody has the right to interpose; no one has a disposi- 
tion to do «o. Sir, the rlctermination of the South in regard to this matter, if it 'roes 
no fiirlhir than to preserve the honor of the South, and to secure what is due to her 



13 

domostic institutions, is right. She has a right, boldly and firmly, to maintain these 
against all encroachment, and 1 assure the gentlemen of the South that she will 
have no diiliculfy in doing this; there will be no obstruction thrown in her way by 
the North; no invasion of rigiits in this resi)ect need be apprehended; no int(;rfer- 
ence. 1 am willing to engage, sir, that she shall be undisturbed in thi; administra- 
tion of her internal aiTuirs, throughout the whole extent of her domain. She may line 
her whole frontier, from the Atlantic to the Mississippi, with bayonets; it will be a 
bloodless warfare; she will have no enemy to contend with. I have no apprehen- 
sion on this score. The ditliculty and the danger lies beyond this. 

Sir, before we suffer ourselves to be excited or alarmed, it is well, perhaps, to 
ascertain in what position we stand, to ascertain what is the issue between us, what 
are its probable and what its possible results. Sir, we have no contest with the 
gentlemen of the South about the institution of slavery, as it exists in the States, 
What is, then, the controversy? Sir, on the one side we maintain the power of Con- 
gress to regulate the subject within the territories while they remain such. This 
power is denied, at least to a certain extent. Here, then, is the issue. Does It not 
result in a question of constitutional construction? 1 have iiad occasion to discuss 
this question heretofore with distinguished gentlemen of the South. We understood 
ourselves as discussing a constitutional question. What arc our powers under the 
Constitution? Can we or can we not put our hands upon the institution within the 
territories, and is it or is it not subject to our control? Sir, irf it is, as I conceive it 
to be, a mere constitutional question, it is not a matter to be settl d by violence. It 
is a matter to be discussed coolly and calmly. 

Such being the character of the issue between us, whatever determination may 
exist here or elsewhere, and however firmly and eariiestly the issue may be main- 
tained by the respective parties to it, yet gentlemen will permit me to say, that all 
threats and violence, all purposes of disunion, of separate independent State action, 
and any and all measures not justified nor called for by the Constitution, are in my 
judgment, at present altogether premature. Sir, Congress has not yet attempted to 
exercise the power in this instance — that is, in relation to the newly acquired terri- 
tories. Before we talk of dissolving the Union, let us wait and see whether Con- 
gress will exercise it. If, sir, it should turn out that the Wilmot proviso, or the 
Ordinance of 1787, cannot be passed through Congress, the South will be satisfied, 
and we certainly shall not attempt to carry either into execution by force. But, sir, 
suppose Congress should enact the Wilmot Proviso, or suj)pose we should incorpo- 
rate the Ordinance of '87 into an act establishing territorial governments, has the 
time then arrived for disunion — for resistance to the Constitution? Has the time 
then arrived for independent State action, or any extreme measures not warranted 
by the Constitution itself? 

Mr. Foot. It would be usurpation. 

Mr. Phelps. The Senator may call it "usurpation," if he pleases. But i repeat 
the question, suppose the Wilmot Proviso should pass? Has the time arrived for a 
separate, independent State action, by way of resistance, to the action of Congress, 
call it usurpation, or what you please? No, sir; not yet. The Constitution has pro- 
vided its remedy; the framers of that instrument, foreseeing that there might be a 
difference of opinion in defining precisely the powers conferred by it, have provided 
a peaceful tribunal for the adjustment of such controversies — that tribunal which 
sits in the chamber below us, Mr. President, (the Supreme Court.) It is for them 
to pass on the validity of these ordinances. 

Sir, we were told yesterday that we had nothing to do with their decision; that 
we are to follow our own opinion, without regard to their adjudications, and are to 
be guided solely by our own judgment. All this may be true to a certain extent. 
In giving our votes here, we are guided by the dictates of our own judgments, and 
we ibrm our own opinions of what is constitutional and what is not; but, sir, when 
a law comes to be enacted, and the question whether that law is constitutional or 
not is raised, the decision of that tribunal, whether it is or is not constitutional, 
binds the Government, and decides the Executive whether to put the law in force 
or not. If the decision is adverse to the law, the law itself is abrogated, virtually and in 



14 

effect, by the decision of this tribunal. Sir, is not the path before us plain? When 
the judi^inent of this body and of the other House is passed upon this subject, and 
the Wihnot Proviso is adopted, if the constitutionality of the enactment is doubted, 
here is a constitutional tribunal to settle the question. 

Now, sir, will or will not the North and South both submit to its decision? Will 
either party attempt to decide on the constitutionality of the law in anticipation of 
the decision of this tribunal, and set that decision at defiance? Sir, I repeat, that 
even when these measures, ofi'ensive as they may be regarded in some quarters, are 
passed here, the time for resistance in any other shape than in following out the re- 
medies provided by the Constitution has not yet arrived. When the decision of that 
tribunal is pronounced, should it establish the poAver for which we at the North con- 
tend, it will then be fully in season; early enough for the gentlemen of the South to 
begin to calculate the value of the Union, and determine whether they can any lon- 
ger live under it, as expounded by the various departments of the Government. 
Sir, we have many stages to pass through yet; many contingencies to encounter, 
before we begin to talk of breaking up the foundations of our political temple. 

Mr. President, 1 alluded, in the commencement of my remarks, to a measure that 
(was brought before this body some months ago — a measure which was in my judg- 
ment the only one which could be resorted to with the slightest hope at that time of 
an adjustment of this question. Sir, I am free to say I was disappointed in some re- 
spects in finding gentlfemen of the South giving their assent to that proposition in a 
manner that appeared to me hardly consistent with their professed opinions. Sir, I 
give the gentlemen credit for yielding their assent to that measure with a view of con- 
ciliation and settlement. This very question presented itself to us when we had 
under consideration that bill. There lay under it, after all, the constitutional ques- 
tion, whether you can regulate the subject at all. We were all conscious of that. 
The friends of the bill, one and all, were willing to submit that constitutional ques- 
tion to the proper tribunal. We did not attempt to settle it, but professed on all 
sides a willingness to submit the question to the tribunal created by the Constitution 
for the purpose of deciding it. Has there been any change of sentiment on this point? 
Are we not prepared now to submit it? Certainly, sir. 

Mr. Yui.EE. Do 1 understand the gentleman to say that the North is prepared now to submit the 
question to tliat tribunal ? 

Mr. Phelps. I cannot be responsible for the entire North ; but what I mean to say is, I trust that 
all parties are willing at the present day, before resorting to measures not sanctioned by the Constitu- 
tion, to submit the constitutional question, in the first instance at least, to the tribunal created for the 
purpose of deciding it. Sir, when a decision is had, the question will assume a very different aspect. 
Sir, I do not like to anticipate, but I venture to assert that the great mass of the American people will 
ait down satisfied with the decision of that tribunal upon this ipiestion, let that decision be as it may. 

Mr Yllee. Will the Senator yield me the floor for one minute? T desire that Senators from the 
North should be tested upon this point. The gentleman says that the North is contented that the 
issue of thi.s question between the two sections of the country should rest upon the decision of the 
Supreme Court as to the constitutional merits of the issue. Now, sir, I ask him whether lie speaks 
for the North, when he says the North is willing to come forward and meet the South upon this set- 
tlement of the issue. I hazard nothing in saying that the South is prepared now, conscious as she is 
that she demands only her constitutional rights, "to submit the question to the Supreme Court, and to 
hold all action and all legislation which may affect it in abeyance until that decision shall be had. 

Mr. Di?TLKR. I am bound to interfere in this matter, because the question put by the Senator from 
Florida should not go without some explanation. At the time the bill relating to the territories was 
under consideration more than a year ago, the South would have had an opportunity to have settled 
this territorial question, and during that time must have had some rights wilrhin those territories 
•ccured to her by Congress ; but 1 do not go so far as my friend from Florida in saying that I would 
altogether acquiesce in the proposition to subject the rights of fourteen sovereign States to the decision 
of a body like the Supremo Court of the United States, after all the advantages given to our opponents 
by the oficrationH of the Government in California and New Mexico. 

Mr. FooTE. If the honorable Senator will allow me to interpose at this point of his argument, 1 
will beg leave to rrad an extrart from the famous report of Mr. Madison, explanatory and vinilicatory 
of the rclebrutcd Virginia res-ilulions of 17i)8-'99. It will be recollected that it was contended then, 
M now, by certain siateHmen, that the action of Virginia, Kentucky, and certain other States, had 
been prcnpiiaie and unjusiifinblc, in slrivinjr, in the mode then adopted, to an-enl the course of uncon- 
■lituiionnj IcgiHlmion on the part of Congress, and that the Supreme Court of the Union ought alone 
to l)«- appealed to. Listen to Mr. Madi.ion, who, as a lover of the Union, and a faithful expositor of 
the Ciinatitiiiiiin, haw never been surpassed : 

"If ihe deliberate exercJHe of dangerous powcr.i, pal|)ably witiield by the Constitution, could not jus- 



15 

tify the parties to it in interposing even so far as to arrest the progress oft ne evil, and thereby to pre- 
serve the Constitution itself, as well as to provide for the safety of the parties lo it, there would be an 
end to all relief from usurped power, and a direct subversion of the rights specified or recognised under 
all the State constitutions, as well as a plain denial of the fundamental principle on which our inde- 
pendence itself was declared. 

"But it is objected that the judicial authority is to be regarded as the pole expositor of (he Constitu- 
tion in the last resort; and it may be asked for what reason the declaration by the General Assembly, 
supposing it to be .theoretically true, could be required at the present day, and in so solemn a manner. 

"On this objection it might be observed, first, that there may be instances of usurped power which 
the forms of the Constitution would never draw within the control of the judicial department; second- 
ly, that, if the decision of Judiciary be raised above the authority of the sovereign parties to the Con- 
stitution, the decision of the other department, notcarried l)y the forms of the Cotistitution before the Ju- 
diciary, must be equally authoritative and final with the decisions of that department. But the proper 
answer to the objection is, that the resolution of the General A.s.sembly relates to those great and ex- 
traordinary cases in which all the forms of the Constitution m ly prove inelTectual against infractions 
dangerous to the essential rights of th<: parties to it. The resolution supposes that dangerous powers, 
not delegated, may not only bo usurped and executed by the other departments, but that the judicial 
department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, 
consequently, that the ultimate right of the parties to the Constitution to judge whether the compact 
has been dangerously violated, must extend to violations by one delegated authority as well as by 
another — by the Judiciary as well as by the executive or the legislature. 

"However true, therefore, it may be that the judicial department is, in all (juestions submitted to it 
by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the 
last in relation to the authorities of the other departments of the Government; not in relation to the 
rights of the parties to the constitutional compact, from which the judicial as well the oth^r depart- 
ments hold their delegated trusts On any other hypothesis, the delegation of judicial power would 
annul the authority delegating it; and the concurrence of this department with the others in usurped 
powers might subvert forever, and beyond the po.ssible reach of any rightful remedy, the very Con- 
stitution which all were instituted to preserve." 

Mr. Phelps. Mr. President, I apprehend there is nothing in the extract which has been read 
which bears on the course of remark which I was pursuing. What [ intended to illustrate was this : 
should this law, offensive to the people of the South, receive the sanction of Congress, there is still a 
constitutional tribunal to which they may appeal for the interpretation of the Constitution, and for the 
purpose of determining whether this body has transcended its [)o\vers or not. Well, sir, if that deci- 
sion should be against the validity of the law, most clearly the South would be satisfied ; we should 
have no civil war growing out of such a decision. Should the decision be otherwise, and the power 
of Congress in this particular be established, it will then, as I remarked before, rest with the sove- 
reign States of this Union to determine whether they can longer adhere to the Constitution thus 
expounded by the Judiciary departuieni of the Government. Tlie extract from the writings of Mr. 
Madison asserts the ground that these .sovereign States may, after all, judge for themselves. Cer- 
tainly !hey may. They must be their own judges whether they will longer continue in our political 
community. I have expressed no doubt on this point. The idea I intended to convey was this : that 
it will be abundantly in seison for the southern States to t<ike this matter into consideration when they 
have exhausted their constitutional remedies. 

Mr. FooTE. The honorable Senator will pardon me for suggesting that he has most evidently mis- 
taken the character of the crisis of 1793, and has especially misconceived the main object of those reso, 
lutions. Secession was not then looked to, mainly at least, but the arrest of unconslitutional legislation 
by constitutional remedies, whilst the Union should continue. 

Mr. Phelps. Certainly, certainly; I have no objection to any constitutional mode of operating on 
the action of Congress. My remark is not directed to any constitutional mode, Ijut the reinark was, 
and I repeat it, lei the constitutional modes be exhausted before separate, independent. State action 
shall be I'esorted to, not called tor and not warranted by the Constitution. Sir, my object in alluding 
to this was to show gentlemen that much of the excitement which seems to have prevailed on this sub- 
ject is, in my judgment, premature. If we differ on this important point, let us debate it among our- 
selves till we can settle it for ourselves. If the question is still regarded as unsettled, let the constitu- 
tional tribunals pass upon it. When they have settled the construction i)f the Constitution, if any of 
the States of this Union shall feel that that tribunal has proved recreant to its great trust, and has com- 
bined with the other departments of the Government to pervert the Constitution, then the time may 
have arrived when new and diffei-ent modes of redress must be resorted to. Sir, I hope and trust we 
never shall arrive at that point. In my humble judgtnent, we never shall come to it; for, with the 
good sense, the patriotism, and devotion to the Union which pervades, I believe, the whole American 
people, that good sense will, in my judgment, arrest the course of violence and faction long before it 
reaches that extreme. 

Sir, I was remarking that, upon the occasion of the presentation of the bill alluded to before the 
Senate, there seemed to be on all sides, a perfect willingness to submit the question, about which we 
differ, to the constitutional tribunal. I am not authorized to say if that bill liad been passed, and the 
matter had been referred to the Supreme Court for its adjudication, and the decision of that tribunal 
had been adverse to the pretensions of the South; it does not become me to say what would have been 
their future course; but, sir, I desire to know whether there is not, at this moment, the same readiness 
to try, in the first instance, at least, the constitutional remedy, before other and more extreme meas- 
ures should be adopted.' Sir, that was, in my judgment, the correct method. That bill, if it had been 
properly understood, would have been satisfactory to the entire people of the Union; but, it was un- 



16 

fortunauly ihc viiiim of dcmagoguism— the expression is perhups a liursh one— it was unfortunately 
the victim of misconception anil misrepresentation on ilie part of some whose policy it was to keep up 
the excitement. The i»eople of the North were made to believe it involved an abandonment of their 

rrelensions, when, in reality, so far as the powers of Congress could go, it was iircciscly the reverse. 
t» only n-deeniin?j feature m the estimation of those gentlemen of ihe South who concurred in the 
rt|wrt of the commillee was the very fact that under all this legislation lies this constiiutionul question. 
Then Ll.erc w»s a Kfouiui on which they were willing to rest their claims. That bill has been called a 
compromise. It was such in one aspect only. It conceded the legislative action to the Norili, while it 
reserved lo the South the consiiiuiional question upon which the validity of that action depended. 

Sir, I will trouble the Sen.iie for a very fev/ moments longer. I am reluctant to follow this .sub- 
ject furtiier; but, having said what I have, 1 may pcrhap.s be excused for looking a little further into 
the future. Sir, if, through the insirumeniality of .separate independent State action, the operations of 
this Government are to be suspended, it may be well to inquire what then will be the position m 
which we shall find ourselves? Sir, if there is to be a secession from this Union on the pan of the 
South— which 1 hop.; will never be ihe case- but if there should be, what then hec^-mes of this pur- 
pose of carrying the institution of slavery into the territories.' By any such secession, the territories 
■will be left the property of the remaining portion of the Union. The South, by abandoning the Union, 
will abandon their inteiest in the.se territories, and their control over them. Such, upon ordinary 
principles, will be the result. Well, sir, what then becomes of the project of extending slavery into the 
territories; ihi.-* j-.reat object, for which gentlemen seem willing to hazard so much.' Sir, there will be 
but one way— there will be but one mode of carrying it out, and that mode will be by conquest — a con- 
quest of ihosc territories from the power of those Slates which still adhere to the Union. 

Sir. if measures of this kind are resorted to for the purpose of extending the institution of slavery, 
or if ihey are persisted in, I know of no possible result but civil war, in order to obtain the conquest 
of the lerriioiiifi from the free St.ites. 

Sir, 1 will pursue tliis subject no further ; the suggestion that such may be the issue is enough of 
tUelf. If the possibility of such an issue is not of ifself sufficient to excite reflection and induce caii- 
ijon, aJI till- pov.crs of language cannot add one feather's weight to its force. 

.Mr. President, I have alnady d.-lained the Senate too long, but having been called upon to meet 
the subjct here, I thought it my duty to meet it boldly, and at the same time temperately. I depre- 
cate all exciting debate on the subject. I am disposed to view it more coolly as the subject rises in 
imfiortance. Sir, I would sooner quarrel about a trifle than I would yield to excitement in regard to 
d topic which, of al! others, seems most to endanger the harmony, and perhaps the stability, of this 
Union. I meet it boldly, because the sentiments expressed in the resolutions of my own State, how- 
ever they may differ from the sentiments prevailing elsewhere, arc those which my constituency en- 
lerlaiii, an>! whicli my own State, as a member of this Union, has a perfect right to entertain and to 
express. They are sentiments bearing directly on the action of this body, on the most important 
subject before it, and perhaps upon the most important topic that will ever come before it. Upon 
such a question it is the right of any and every State of this Union to express itself in language satis- 
factory to itself. 

Sir,' 1 regret that Senators should have thought it proper, in reference to my colleague (Mr. Upiiam) 
and myself, to cliarge upon us the unnecessary exhibition of these sentiments — the unnecessary and 
culpable iigilaiion of the subject here. Sir, the right of my State, and of any Slate in this Union, to 
speak it.v sentiments in lliis manner, should not be — is not questioned. The only manner in which a 
Stale can speak here is through her lepresenlaiives on this door. Will it be contended that, if such 
expresjiioiis should happen not to be palatable to every gentleman on this floor, that, in regard to a 
topic thus important, it is the duty of the representative to pocket the solemn resolutions of his con- 
Btituenry, ana suppress their opinions? 

Sir, in presenting these resolutions my colleague conformed to the uniform practice of the Senate ; 
and I was not a little surprised that exception should be taken to this course, after listening to the 
expressions of gentlemen from other quarters, in relation to the determination of the Slates they re- 
present. Sir, it is the right, it is the duty of these gentlemen, to express the opinions of the States 
they represent. I take no exception to the very decided tone in which, in some instances, this has 
been done. But I may be permitted to express my surprise that, while gentlemen volunteer, upon 
their own responsibility, not only to express the opinion of their States, but to announce determina- 
tions — fixed and unalterable purposes — which may lead to measures of the last extremity, we should 
be censured for presenting the expression of opinion emanating from the Legislature — the representa- 
tives ofihcpeople of our Stati. 

Mr. President, I repeal it, this subject is one which, of all others, I would avoid, if I could avoid it 
consimeiilly with my duty- But the time has come when it cannot be ai-oided. My apology, if one 
be neceH.-ary, for trespassing upon the time of the Senate, is lo be found in the fact, that the opinions 
exi>re.H8ed by the Legislature of my Stale have been commented upon in a tone and with a severity 
which renderc-d it my duty, as the representative of the State, to vindicate those opinions, and those 
who cxprcKsed them. 



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